Discrimination Claims - The Perils of Making it Personal

The U.S. Equal Employment Opportunity Commission (EEOC) has released its annual statistics of charges filed, and once again the most common charge was not discrimination by race, sex, age or anything else.   Rather, most of the charges filed with the EEOC in 2016 were retaliation claims.  And that has been true not only last year but for the last six years.

Retaliation is considered a form of discrimination and is every bit as unlawful as any other type.  Even where an initial discrimination case is unfounded, a business can still face liability for retaliation that follow the claim. 

So what’s going on here? 

It’s natural for anyone to take it personally when they perceive they have been wronged.  But when that person is a manager who then takes action against an employee who is exercising a legal right, the action could be considered retaliatory.  Federal law protects from retaliation on any employee who files a claim of discrimination or who participates in an investigation of discrimination. 

To complicate matters, retaliation can include subtle changes in behavior toward an employee.  Timing is also a significant factor – the sooner the perceived negative action occurs following an employee’s involvement in a discrimination matter, the more suspicious the action may look to those investigating or adjudicating the claim. 

Accordingly, when an employee files a discrimination claim, managers need to stay on top of issues with the claimant’s conduct, performance, and attendance, with a keen eye toward making sure the employee is not treated any differently from pre-claim to post-claim.  As an example, if an employee had attendance issues that were not addressed prior to the claim, then suddenly cracking down after the claim is filed is going to risk a retaliation charge.

Now, this does not mean that an employee who has filed a discrimination claim or participated in a subsequent investigation suddenly becomes “untouchable.”  Rather, managers need to make sure that any disciplinary or other actions concerning the employee are justified, consistent with past practices, well-documented, and, above all, not reactive or personal.  As a manager, you should be taking this approach under any circumstance.  The filing of a discrimination claim merely calls for heightened awareness and a closer look at whether any action, no matter how minor, could be perceived as retaliation for the claim.

Additional guidance from the EEOC can be found by clicking here. https://www.eeoc.gov/laws/types/retaliation_considerations.cfm.